Nora Stappert.

One way to answer this question is to roughly distinguish between two classic ways of thinking of international law’s relationship with legitimacy and legitimation. First, based on a social contract conception of legitimacy, international law is seen as grounded in the principle of state consent (for a discussion, see e.g. Collins 2017). According to such a perspective, a global governance institution is legitimate if it was created based on state consent (as discussed critically by Buchanan and Keohane 2006, 412-4; and applied empirically by e.g. Binder and Heupel 2015).

Second, Michael Zürn (2018, 72) outlined a legitimation narrative that draws on law as “based on the protection of basic rights and the rule of law.” He thus filled the idea of a law-based legitimation narrative with key rule of law requirements such as equality before the law (Zürn 2018, 73). Similarly, Jutta Brunnée and Stephen Toope (2010; 2011) proposed that legal norms are distinctive because, and if, they remain committed to key legality requirements such as non-retroactivity and clarity, thereby gaining the potential to attain legitimacy.

Beyond these two approaches, however, international law and legal argumentation may also be seen as relying on a specific form of expertise. In this context, Andrew Hurrell (2005, 22) has pointed towards “specialised and specialist knowledge” as a “dimension” of legitimacy. Seen from this perspective, institutions and the rules and normative commitments underpinning them possess legitimacy if those that created and inhabit them are able to draw on such “specialist knowledge or relevant expertise” (Hurrell 2005, 22), of which legal arguments made by international lawyers might be one example.

Conceptually, it is a key advantage of the first two approaches highlighting state consent or rule of law requirements respectively that they clearly outline how legitimacy in and through law might be different from other legitimacy sources in global governance. However, I would propose that there is nevertheless an advantage in thinking about legal legitimacy as rooted in expertise. Legal language and argumentation is not only highly specialised, but arguably also clustered around different legal regimes and global governance institutions. In practice, how different – albeit potentially overlapping – interpretive communities (Fish 1980, 14-15; Johnstone 2011, 33-54) inhabiting these distinct social spaces function is likely to differ (Stappert 2019, 8-9; see generally also Roberts 2017). To give an example, the way in which international trade lawyers justify their decisions is likely to diverge from the arguments human rights lawyers propose, and ultimately also from the legitimacy claims they make. As a result, if legitimacy in and through international law is conceptualised as rooted in the overarching principle of state consent or a set list of rule of law requirements alone, it arguably becomes difficult to capture such differences (Stappert 2019, 8-9).

Does such an approach entail that there is nothing distinctive about international law and its relationship with legitimacy? In a recent article, I specifically focused on legal interpretation, and emphasized that it might also be the more general character of legal interpretive practices as backwards-looking that sets them apart, given that every interpretation is required to be grounded in existing law (Stappert 2019). Consequently, such interpretations ultimately draw on an authority that is depicted as both legitimate and, crucially, different from the interpreter themselves. As Pierre Bourdieu (1987, 838) put it regarding the domestic context, “[t]he judgment represents the quintessential form of authorized, public, official speech which is spoken in the name of and to everyone.” To conclude, thinking about legal expertise as a source of legitimacy therefore not only highlights the structure and form of legal argumentation and its relationship with legitimacy, but may also facilitate empirical research that traces how legitimation narratives offered by distinct interpretive communities differ.


Nora Stappert
 

References

Binder, Martin, and Monika Heupel (2015) “The Legitimacy of the UN Security Council: Evidence from Recent General Assembly Debates,” International Studies Quarterly 59(2): 238-250.

Bourdieu, Pierre (1987) “The Force of Law: Toward a Sociology of the Juridical Field,” Hastings Law Journal 38(5): 814-853. 

Brunnée, Jutta, and Stephen Toope (2010) Legitimacy and Legality in International Law: An Interactional Account. Cambridge: Cambridge University Press.

Brunnée, Jutta, and Stephen Toope (2011) “Interactional International Law and the Practice of Legality,” in International Practices, edited by Emanuel Adler and Vincent Pouliot, pp. 108-135. Cambridge: Cambridge University Press.

Buchanan, Allen, and Robert Keohane (2006) “The Legitimacy of Global Governance Institutions,” Ethics & International Affairs 20(4): 405-437.

Collins, Richard (2017) “Sources and the Legitimate Authority of International Law: A Challenge to the ‘Standard View’?,” in The Oxford Handbook on the Sources of International Law, edited by Samantha Besson and Jean D’Aspremont, pp. 703-723. Oxford: Oxford University Press.

Fish, Stanley (1980) Is there a Text in This Class? The Authority of Interpretive Communities. Cambridge: Harvard University Press.

Hurrell, Andrew (2005) “Legitimacy and the Use of Force: Can the Circle be Squared?,” Review of International Studies 31(S1): 15-32.

Johnstone, Ian (2011) The Power of Deliberation: International Law, Politics and Organization. Oxford: Oxford University Press.

Roberts, Anthea (2017) Is International Law International? Oxford: Oxford University Press.

Stappert, Nora (2019) “Practice Theory and Change in International Law: Theorizing the Development of Legal Meaning Through the Interpretive Practices of International Criminal Courts,” International Theory (online first): 1-26.

Zürn, Michael (2018) A Theory of Global Governance: Authority, Legitimacy, and Contestation. Oxford: Oxford University Press.

Funding: This research has been funded by a Marie Skłodowska-Curie Fellowship (Grant Agreement No. 748114) as part of the European Commission’s Horizon 2020 Research and Innovation Programme, and by the Danish National Research Foundation Grant No. DNRF105. It was partly conducted under the auspices of the Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts).